Judge blocks criminalizing Web porn that reaches kids

PHILADELPHIA - Software filters work much better than a 1998 federal law designed to keep pornography away from children on the Internet, a federal judge ruled Thursday in striking down the law on free-speech grounds.

Senior U.S. District Judge Lowell Reed Jr. also said the Child Online Protection Act fails to address threats that have emerged since the law was written, including online predators on social-networking sites like News Corp.'s MySpace, because it targets only commercial Web publishers.

"Even defendant's own study shows that all but the worst performing (software) filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web," said Reed, who presided over a monthlong trial in the fall.

The never-enforced law was Congress' second attempt to protect children from online porn. The U.S. Supreme Court upheld in 2004 a temporary injunction blocking the law from taking effect; Reed on Thursday issued a permanent injunction.

The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age. Penalties include a $50,000 fine and up to six months in prison.

Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union had challenged the law on grounds it would have a chilling effect on speech. Joan Walsh, Salon.com's editor in chief, said the law could have allowed any of the 93 U.S. attorneys to prosecute the site over photos of naked prisoners at Iraq's Abu Ghraib prison.

"The burden would have been on us to prove that they weren't" harmful to minors, Walsh said Thursday.

In his ruling, Reed warned that "perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection." Daniel Weiss of Focus on the Family Action, a lobbying arm of the conservative Christian group, said it would continue to press Congress for a workable law. "The judge seems to indicate there's really no way for Congress to pass a good law to protect kids online," Weiss said. "I just think that's not a good response." To defend the nine-year-old law, government lawyers attacked software filters as burdensome and less effective, even though they have previously defended their use in public schools and libraries. That case was over a 2000 law requiring schools and libraries to use software filters if they receive certain federal funds. The high court upheld that law in 2003. The plaintiffs expect the Justice Department to appeal. Justice spokesman Charles Miller said the department still was reviewing the decision and has "made no determination as to what the government's next step will be." "I would hope that Attorney General (Alberto) Gonzales would save the U.S. public's money and not try to further defend what is an unconstitutional statute," said John Morris, a lawyer with the Center for Democracy and Technology, which wrote a brief in the case. "That money could better be used to help educate kids about Internet safety issues," he said. The plaintiffs argued that filters work best because they let parents set limits based on their own values and a child's age. Reed concluded that filters have become highly effective and that the government - if it wants to protect children - could do more to promote or subsidize them. The law addresses material accessed by children under 17, but only applies to sites hosted in the United States. The Web sites that challenged the law said fear of prosecution might lead them to shut down or move their operations offshore, beyond the reach of U.S. law. They also said the Justice Department could do more to enforce obscenity laws already on the books. Reed noted in his 83-page ruling that, since 2000, the Justice Department has initiated fewer than 20 prosecutions for obscenity that did not also involve other charges such as child pornography or attempts to have sex with minors. Although the government argued for the use of credit cards as a screening device, Reed said he saw no evidence of any accurate way to verify the age of Internet users. And he agreed that sites that require a credit card to view certain pages would see a sharp drop-off in users. The 1998 law followed the Communications Decency Act of 1996, Congress' first attempt to regulate online pornography. The Supreme Court in 1997 deemed key portions of that law unconstitutional because it was too vague and trampled on adults' rights. COPA narrowed the restrictions to commercial Web sites and defined indecency more specifically. "This is the second time Congress has tried this, and both times the courts have struck it down," said the ACLU's Chris Hansen, a lead attorney on the case. "I don't see how Congress could write a constitutional statute."